An extremely effective lawyer and reformer in the Progressive era before Woodrow Wilson named him to the Supreme Court in 1916, Brandeis had very little if any contact with issues that would be identified as civil liberties. About the only reform that even comes close was his involvement in efforts to improve the treatment of patients in public mental asylums in the late 1890s, and that work seems to have resulted more from a request from one of his reform colleagues than from any innate personal interest.
At the time when Brandeis took his seat on the bench, the dominant issue on the Court’s docket involved economic rights, primarily the protection of private property through substantive due process and the negation of protective labor legislation through the doctrine of freedom of contract. Brandeis, who as a lawyer had convinced the Court to uphold maximum hours legislation for women in Muller v. Oregon (1908), believed that while important rights inhered in property, they had to be subservient to the greater good. Under the states’ police powers, both property rights as well as freedom of contract could be curtailed to protect workers from the harsh conditions that they faced in modern industrialized factories.
Once on the Court, Brandeis often spoke out against the conservative interpretation of property rights as a danger to the rights of others, especially workers. It is not that Brandeis did not believe in property rights; he did, but believed that when the public good required it they should be limited. He especially believed in the right of laboring people to organize into unions and to bargain collectively, although throughout the 1920s he often stood alone or with Holmes in this view, as in Bedford Cut Stone Co. v. Journeymen Stone Cutters Association (1927). But his most original contributions came in the areas of free speech and privacy.
In March 1919, Brandeis joined Holmes in his landmark speech decision in Schenck v. United States (1919), in which the Court upheld a conviction for antiwar expression under the 1917 Espionage Act. In this decision Holmes set out what would be the defining test for free speech for the next half-century: ‘‘The question in every case is whether the words are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’’ Since the clear and present danger test was so highly subjective, it served as a device by which conservative judges could silence almost any unpopular opinion, a danger that civil libertarians immediately recognized. Holmes, long the darling of liberals, suddenly found himself the object of their severe criticism.
Eight months later, in Abrams v. United States (1919), Holmes, joined by Brandeis this time in dissent, attempted to make the clear and present danger test more speech protective, and introduced his idea of free trade in ideas, in which all ideas should be heard so that the ‘‘best test of truth is the power of the thought to get itself accepted in the competition of the market.’’
Brandeis would join Holmes in all of the great speech cases of the 1920s, always in dissent, but a significant difference existed between the two men in why they valued free speech. Although Holmes provided the pithy phrases, Brandeis is the one who refined the concept and who ultimately provided the arguments that remain the basis of First Amendment free speech jurisprudence to this day.
In regard to the Schenck opinion, Brandeis later told Felix Frankfurter that ‘‘I have never been quite happy about my concurrence . . . . I had not then thought the issues of freedom of speech out—I thought at the subject, not through it.’’ In 1920, in his dissenting opinions in Schaefer v. United States (1920) and Pierce v. United States (1920), Brandeis, as he later recounted, began to understand the issues. Rather than list what the defendants should not have been allowed to say, Brandeis emphasized what they should have been allowed to say, and that would have been anything permitted in peacetime. Unlike his friend Herbert Hoover, who believed that criticism of the governmental policy ought to end at the water’s shore—that is, there should be no dissent among Americans regarding foreign policy—Brandeis argued that all matters of public importance should always be open to full criticism, no matter how ‘‘radical’’ the speaker or how unpopular the ideas. Moreover, the test to be used in deciding whether a clear and present danger existed should not be the heightened emotional climate of wartime, but rather the quieter and presumably more rational environment of peacetime. While clearly the government could not allow war protesters to publish the times that troop ships sailed, in terms of policy criticism Brandeis would have utilized the same criteria in wartime as in peacetime, a standard that would have made convictions for seditious libel almost impossible.
In Gilbert v. Minnesota (1920), Brandeis and Holmes parted company over a state statute that prohibited interference with military enlistment. An official of the Nonpartisan League—hardly a radical organization—had been convicted under the law for telling a public meeting that the average citizen had not had a say in whether the United States should have entered the World War or whether Congress should have established a draft. Holmes silently concurred with McKenna’s opinion for the majority that the speech constituted a clear and present danger, and that the state had the power to prevent such peril. Chief Justice White dissented on the grounds that the federal law preempted the field, grounds on which Brandeis agreed. But he apparently was very angry at his brethren who had consistently used the due process clause to strike down economic measures, but here forbore from even a rudimentary examination of a far greater imposition on civil liberties, freedom of speech. Gilbert is perhaps the best example that Brandeis saw a significant difference in how the Court should approach economic measures—with judicial restraint and deferring to the elected branches’ policymaking authority—and laws affecting such basic rights as speech, in which the Court should take a more strenuous approach to protect individual liberties. The dissent in Gilbert in many ways prefigured not only Harlan Fiske Stone’s Footnote Four in United States v. Carolene Products Co. (1938), but also the strict scrutiny standard adopted by the Warren Court in First Amendment cases.
Brandeis’s greatest contribution to free speech jurisprudence came in his concurring opinion in Whitney v. California (1927), which clearly delineated the differences between what one scholar has called his ‘‘republican’’ justification for the First Amendment and Holmes’s libertarian approach.
Charlotte Anita Whitney, a niece of Justice Stephen J. Field and ‘‘a woman nearing sixty, a Wellesley graduate long distinguished in philanthropic work,’’ had been convicted under the California Criminal Syndicalism Act of 1919 for helping to organize the Communist Labor Party in that state. The law, originally aimed at the Industrial Workers of the World, made it a felony to organize or knowingly become a member of any organization founded to advocate the commission of crimes, sabotage or violence as a means of bringing about political or industrial change. Whitney denied that the party had ever intended to become an instrument of violence and that no evidence existed to prove that it had ever engaged in criminal or violent acts. Nonetheless, the conservative majority upheld the conviction, and characterized the law as a legitimate decision by the state legislature to prevent the violent overthrow of society.
Because of technical issues (the defense had not raised the particular constitutional issue that concerned Brandeis), he chose not to dissent, but his concurrence, joined in by Holmes, provided an eloquent defense of intellectual freedom and its relation to democratic society unmatched in the annals of the Court. His opinion, which has often been cited, provides the modern basis for much of First Amendment jurisprudence.
Holmes had put forward a marketplace of ideas rationale for free speech, but it had little direct bearing upon democratic government. Holmes loved ideas, but in the abstract, and so his rationale is powerful, but in an abstract manner. His famous aphorism, that ‘‘one cannot falsely shout fire in a crowded theatre’’ is certainly true, but devoid of practical guidelines. Holmes cared little for the practical and dismissed reform and reformers as ineffective. The Constitution set up certain guidelines, and so long as people acted within those guidelines, he could not have cared less what they did.
For Brandeis, on the other hand, free speech constituted an essential ingredient of good government. For him, the highest calling was that of a citizen in a democracy, but the great privileges that position bestowed required corresponding responsibilities. In order to be a good citizen, one had to participate in the democratic process, to make one’s voice and views known to policymakers. One could not think responsibly about complex issues if the state censored, through sedition laws and other devices, a broad spectrum of ideas. People might agree or disagree with any one view, but they had to be aware of that view in order to fulfill their obligations. Democratic government, properly conducted, provided humankind with the great opportunity for individuals to achieve their dreams. In a famous and oft-quoted passage, he wrote that:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinary adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a public duty; and that this should be a fundamental principle of the American government.
Rather than be afraid of what people might say, that radical ideas might undermine property rights, that strange ideas would yield ‘‘bad counsel,’’ Brandeis believed that the cure for ‘‘bad speech’’ was not fear, but more speech. Civic virtue, that hallmark of Athenian democracy that Brandeis prized so greatly, demanded that citizens not be afraid of the different. ‘‘Men feared witches and burnt women,’’ he noted. It is the function of speech to free men from the bondage of irrational fears.
Brandeis’s tying of free speech to government has led some people to argue that the First Amendment’s speech clause applies only to political speech, and that other kinds of expression do not fall within the ambit of its protection. While it is impossible to tell just how far Brandeis would have extended First Amendment protection, he clearly believed that it applied to some nonpolitical speech as well.
In Senn v. Tile Layers Protective Union (1937), the Court heard a challenge to a Wisconsin law that made peaceful picketing lawful, and forbade courts from issuing injunctions to prevent it. During a strike, a construction company owner tried to get an injunction to prohibit workers from peaceful picketing of his plant, on the grounds that it deprived him of his property rights. The Court, by a five-to-four vote, upheld the law, and Brandeis, in the majority opinion, intimated that picketing, aside from its value as a tool in a labor dispute, might also be a form of speech. Union members, he held, did not have to rely on statutes to make the facts of a labor dispute public, ‘‘for freedom of speech is guaranteed by the Federal Constitution.’’ Although the Court has refused to categorize picketing per se as a protected activity, it is clear that in Brandeis’s mind the First Amendment protected many forms of expression.
In his dissent in Gilbert v. Minnesota, Brandeis not only protested against the state sedition law but also added the following line: ‘‘I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.’’ While at the time it appeared to many as little more than a sign of the justice’s frustration with his conservative brethren, in fact that sentence set in motion one of the most significant constitutional developments of the twentieth century, the incorporation of Bill of Rights protections through the due process clause of the Fourteenth Amendment so as to apply them to the states as well as to the federal government. (Ever since Barron v. Baltimore , the Court had held that the protections in the first eight amendments to the Constitution applied only against Congress and not to the states.)
If Brandeis could have had his way, he would have wiped out the Fourteenth Amendment’s due process clause completely, or else severely limited it to procedural matters. Aware that the conservatives on the Court would never allow this to happen, Brandeis wanted the same protection now given to property rights to be applied to other rights that he considered fundamental, such as speech, education, choice of profession, and travel.
Ironically, one of the Court’s archconservatives first applied substantive due process to non-property rights. Justice McReynolds, in Meyer v. Nebraska (1922), struck down a statute that forbade teaching German in public schools. Although McReynolds used the language of property protection, he expanded it to include other rights including the raising and educating of one’s children, an argument that he applied again in Pierce v. Society of Sisters (1925).
That same year, while the majority upheld the conviction of communist leader Ben Gitlow under New York’s 1902 Criminal Anarchy Act (with Holmes and Brandeis dissenting), Justice Sanford noted, without any further elucidation, that: ‘‘For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress— are among the fundamental personal rights protected by the due process clause of the Fourteenth Amendment from impairment by the States.’’
Ever since that time there has been an ongoing debate over whether in fact the framers of the Fourteenth Amendment meant the Bill of Rights to apply to the states, and if so, whether only certain rights should apply (the idea of ‘‘selective incorporation’’ proposed by Justice Cardozo and limited to those rights deemed ‘‘fundamental’’) or whether all of the Bill of Rights should apply (the idea of ‘‘total incorporation’’ championed by Justice Black). In the end, nearly all of the rights were in fact incorporated, but through the rationale of selective incorporation. The great revolution in civil liberties in the 1960s and afterwards owed much to Brandeis.
It is difficult to know whether Brandeis would have been an advocate of selective or total incorporation. While on the bench he had the satisfaction of seeing not only speech but freedom of press incorporated, in Near v. Minnesota (1931), as well as right to counsel in capital cases, in Powell v. Alabama (1932). But in 1937 he joined in Justice Cardozo’s opinion for the Court in Palko v. Connecticut (1937), in which Cardozo set forth his theory of selective incorporation and held that the Fifth Amendment bar against double jeopardy did not apply to the states. Brandeis had left the Court and died before Hugo Black developed his theory of total incorporation in Adamson v. California (1947).
Second only to Brandeis’s contribution to the jurisprudence of free speech was his belief that the Constitution protected a right to privacy. Brandeis had first become interested in privacy in the 1890s, when reporters had sneaked into parties given by his socially prominent partner, Samuel D. Warren. The two men had written an article titled ‘‘The Right to Privacy’’ and published it in the Harvard Law Review. According to Dean Roscoe Pound, the article did ‘‘nothing less than add a chapter to our law.’’ Warren and Brandeis had based their right to be let alone on common law protections, but once on the Court, Brandeis began to believe that privacy constituted such a fundamental right that—even though nowhere listed as such in the Constitution—it deserved the highest level of protection.
Brandeis found his chance to expound this idea in the first wiretapping case to come before the high court, Olmstead v. United States (1928). In the 1920s, technology gave the government a new tool to fight crime, the ability to listen in on the telephone conversations of alleged gangsters. By tapping Olmstead’s phone, government agents secured evidence to convict him under the National Prohibition Act. He appealed on grounds that the government had not secured a warrant, and had therefore violated the Fourth Amendment. By a bare majority of five to four, the Court upheld the conviction. In a mechanistic opinion, Chief Justice Taft said that since there had been no entry into the house itself, there had been no search within the meaning of the Fourth Amendment, and therefore a warrant had not been needed.
The opinion elicited a strong dissent from four justices—Holmes, Butler, Stone, and Brandeis. Holmes condemned wiretapping as ‘‘a dirty business’’ and seemed to imply that gentlemen should not read other gentlemen’s letters, or listen in on their conversations. Justice Butler tore apart Taft’s sterile interpretation of the warrant clause, but the most impressive opinion came from Brandeis, condemning not only the action of the government but also putting forth the idea of a constitutionally protected right to privacy.
First, he considered it ‘‘less evil that some criminals should escape than that the government should play an ignoble part.’’ The government is the great teacher in a democratic society, and if ‘‘government becomes a lawbreaker, it breeds contempt for the law.’’
The most noted and influential part of the dissent dealt with the question of privacy. The framers of the Constitution, he wrote, ‘‘sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men.’’ That passage was picked up and elaborated on until finally, in Griswold v. Connecticut (1965), the Court recognized privacy as a constitutionally guaranteed liberty. Although so-called originalists argue that since the Constitution does not mention privacy it cannot protect it, a majority of the Court and most of the American people have come to see privacy as Brandeis saw it—‘‘the most comprehensive of rights, and the right most valued by civilized men.’’
Wiretapping itself remained legally permissible for many years, although Congress in 1934 prohibited admitting evidence obtained by wiretapping in federal courts. Not until Berger v. New York (1967) did the Court finally adopt Brandeis’s view and bring wiretapping within the reach of the Fourth Amendment; now wiretap evidence may be introduced, but only if it has been secured after the issuance of a proper warrant.
During the 1920s and 1930s, as the Court’s agenda slowly changed from concern with property rights to concern with civil liberties, Louis Brandeis clearly stood as its foremost champion of civil liberties. One should not, however, confuse Brandeis with a modern liberal. Conservative in many ways, he was also a man of his times. He joined the majority of the Court in denying equal rights to Asiatics in Ng Fung Ho v. White (1922) and Ozawa v. United States (1922). He voted to uphold racially restrictive covenants in Corrigan v. Buckley (1926), and perhaps most infamously, joined in Holmes’s opinion upholding forced sterilization of mentally retarded people in Buck v. Bell (1927).
Nonetheless, his views on speech, wiretapping, privacy, and what came to be the doctrine of incorporation, although often propounded in dissent, eventually came to be the law of the land, and forms the basis of much of today’s civil liberties jurisprudence.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited